On the responsibility of special rapporteurs

Abstract

While acclaimed for their activities in addressing human rights violations on behalf of the United Nations, the special procedures of the Human Rights Council have also been criticised by UN member states for actions asserted to be incompatible with their obligations. The criticisms have generally been self-serving and unconvincing, but some have had plausibility. The obligations of the special procedures are examined from the perspective of the main documents governing the activities of UN ‘experts on mission’ generally, as well as those specifically applicable to the special procedures. Existing and proposed channels for dealing with complaints about their activities are considered.

Keywords:

• United Nations
• Human Rights Council
• special procedures
• special rapporteurs
• Human Rights
• privileges and immunities
• complaints mechanisms

Acknowledgements

I acknowledge gratefully the help of Dr Markus Schmidt, senior legal advisor at the UN office at Geneva, and Ms Jane Connors, director of Special Procedures Branch, Office of the High Commissioner for Human Rights, for alerting me to significant developments and steering me towards relevant materials.

Notes

Statement at Time Warner Centre, 8 December 2006, http://www.un.org/News/ossg/sg/stories/statments_full.asp?statID=39 (accessed 14 December 2010).

Apart from setting up a working group on the sui generis human rights situations in southern Africa in 1967 and investigating the evidently non-internal situation in the Occupied Palestinian Territories, it took until 1975 for the Commission on Human Rights to begin investigating a situation with no trans-frontier dimensions, namely, the pariah state of Chile under the military regime of General Augusto Pinochet Ugarte.

Political obstacles to investigating grave human rights violations in politically influential countries, such as Argentina (another military dictatorship) led to the establishment in 1980 of the Working Group on Enforced or Involuntary Disappearances, the first thematic mechanism. Followed by the special rapporteurs on summary or arbitrary executions (1982) and on torture (1985), there are 32 as of the creation of the latest in 2010: the special rapporteur on freedom of assembly and association. For key works on the system generally, see Olivier de Frouville, Les Procédures Thématiques:une contribution effiace des Nations Unies à la Protection des droits de l'homme (Paris: Pedone, 1996). Miko Lempinen, Challenges Facing the System of Special Procedures of the United Nations Commission on Human Rights (Turku/Abo: Institute for Human Rights, Abo Akademi University, 2001); Ingrid Nifosi, The UN Special Procedures in the Field of Human Rights (Antwerpen; Oxford: Intersentia, 2005); Elvira Domínguez Redondo, Los Procedimientos Públicos Especiales de la Comisión de Derechos Humanos de las Naciones Unidas (Valencia: Tirant Io Blanch, 2005); Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human Rights and International Law: In Search of a Sense of Community (Antwerp: Intersentia, 2006).

The term ‘special rapporteurs’ when used here in generic terms is interchangeable with ‘special procedures’ which encompasses special rapporteurs (the typical denomination), as well as other mechanisms such as working groups, special representatives, experts and so on.

Now the Stephen Roth Institute for the Study of Anti-Semitism and Racism, of which the present writer is a trustee.

Commission on Human Rights Decision 1997/125.

UN Doc. E/CN.4/1997/71/Corr.1.

See, e.g., the Human Rights Committee case Toonen v. Australia, Communication 488/1992, UN Doc. CCPR/C/50/D/488/1992 (1994).

Article 26 International Covenant on Civil and Political Rights (ICCPR) prohibits ‘discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’; see also article 2(1).

General Assembly Resolution 64/168 (2009), para. 12.

Ibid., para. 19.

Ewen ManAskill and Ian Traynor, ‘Fury as UN Envoy Suggests War Crimes Amnesty for Milosovic’, The Guardian, October 5, 2000; Dienstbier, a human rights activist under the Soviet-imposed government, had been imprisoned for his activities, and was appointed foreign minister in 1989 in the wake of the collapse of that government.

See, e.g., World Conference on Human Rights, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23 (1993), paras 60 and 91.

Mac Askill and Traynor, ‘Fury as UN Envoy Suggests War Crimes Amnesty for Milosovic’ (for Annan and ICTY Prosecutor, Carla del Ponte); ‘Head of UN Mission in Kosovo says Milosovic Must Be Brought to Justice’, http://www.un.org/peace/kosovo/news/1999/oct00.htm (accessed September 26, 2010) (for Kouchner).

‘Brazil Accuses a U.N. Human Rights Envoy of Bias’, New York Times, March 19, 2002, http://www.nytimes.com/2002/03/19/world/brazil-accuses-a-un-human-rights-envoy-of-bias.html (accessed November 1, 2010).

UN Doc. E/CN.4/2003/54/Add.1, paras 8 and 12.

Article II Convention on the Prevention and Punishment of the Crime of Genocide (1948).

UN Doc. A/52/488/Add.1 (1998).

UN Doc. A/52/488 (1998).

UN Doc. ST/SGB/2002/13; this publication also included an (amended) ‘Standards of conduct for the international civil service’.

Letter from Nigel S. Rodley, UN special rapporteur on torture, to Hans Corell, under-secretary-general for legal affairs, 9 July 1998, on file with the author.

UN Doc. ST/SGB/2002/9, para. 5.

Human Rights Council Resolution 5/2 (2007); while not technically part of the Institution-building Package (‘IBP’, Resolution 5/1 (2007)), it was negotiated and adopted contemporaneously and was part of the overall deal whereby the IBP continued the system of special procedures; both Resolutions were adopted on 18 June 2007.

There was one major setback in that the code required ‘diplomatic channels’ to be used for all communications with governments, ‘unless agreed otherwise between individual governments and the Office of the High Commissioner for Human Rights’ (article 14). This included now urgent appeals that had previously gone direct to national capitals to maximise the chances of effective protection.

UN Doc. E/CN.4/2000/5 (1999).

Article 2, para. 1.

Article 2, para. 2.

Staff Regulation 1.2 (e), UN Doc. ST/SGB/2003/5.

See letter, supra note 21.

Ibid.

See Staff Regulation 1.2 (j), loc. cit. note 28 supra; also Code, article 3 (j).

Article 2(f) reads in full: ‘Officials and experts on mission shall exercise the utmost discretion in regard to all matters of official business. Officials and experts on mission shall not communicate to any Government, entity, person or any other source any information known to them by reason of their official position that they know or ought to have known has not been made public, except as appropriate in the normal course of their duties or by authorisation of the secretary-general. If they are not appointed by the Secretary-General, such authorisation shall be conferred by the body that appointed them. These obligations do not cease upon the cessation of their official function.’

Letter, note 21 supra.

Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, ICJ Reports 1999, p. 62, paras 37 and 51–3. (The case concerned Dato' Param Cumaraswamy, a Malaysian citizen who practised law in Malaysia and against whom defamation proceedings were brought in Malaysian courts in respect of statements made by him in his capacity as special rapporteur on the independence of judges and lawyers. The ICJ upheld his immunity.)

Article 97, UN Charter.

‘Other stakeholders’ must here be understood to include local NGOs, professional bodies such as the Bar and indeed civil society in general, access to whom is considered essential to the efficacy of any fact-finding mission.

See also article 12(b).

See Human Rights Council Resolution 5/1 (2007), para. 15(c).

In fact, most special procedures do not interpret their mandates to extend to finding violations in individual cases. However, the Working Group on Arbitrary Detention (WGAD) has traditionally understood its mandate to ‘investigate cases’ under Commission on Human Rights Resolution 1991/42 to imply coming to conclusions in such cases.

See, for example, the Complaint Procedure in Council Resolution 5/1 (2007), para. 87 (e), which broadly continues the complaint procedure contained in Economic and Social Council Resolution 1503 (XLVIII) of 27 May 1970, with the same exclusion.

See Nigel Rodley, ‘Urgent Action’, International Human Rights Monitoring Mechanisms – Essays in Honour of Jakob Th. Moeller, ed. Gudmundur Alfredsson, Jonas Grimheden, Bertrand G. Ramcharan and Alfred de Zayas, 2nd ed. (Leiden/Boston: Martinus Nijhoff Publishers, 2009), 191, 194.

UN Doc. E/CN.4/1996/35 (1996), para. 133.

Barrios Altos case, Inter-American Court of Human Rights, Judgement of 14 May 2001, Ser. C, No. 75 (2001).

UN Doc. E/CN.4/1998/45 (1998), this was an amended version of a Secretariat document previously informally communicated to governments in advance of a mission and now reflecting further experience of special procedures.

Emphasis added.

See, e.g., Camille Giffard, The Torture Reporting Handbook (Colchester: University of Essex Human Rights Centre, 2000), chapter 3.

UN Docs E/CN.4/ 2000/9, para. 239; and E/CN.4/2001/66, para. 329.

For the visit report, see UN Doc. E/CN.4/2006/6/Add.6; once he was on the ground, the Terms of Reference were ‘in principle respected’ (para. 9), albeit there were also difficulties in securing compliance (paras 10–11).

As happened at the end of the present writer's visit as special rapporteur on torture to Kenya: UN Doc. E/CN.4/200/9/Add.4, para. 36.

Manual, para. 60.

Manual, para. 115.

Manual, para. 59.

There can be little doubt that such activities can also strengthen the impact of the action in question by intensifying its institutional focus. It may be speculated that the silence of governments, despite their complaints about duplication, reflects their own awareness of this attribute of joint activities.

See UN Docs E/CN.4/1998/53/Add.2 and Commission on Human Rights Resolution 2004/55, para. 6.

See UN Docs E/CN.4/2000/9, paras 1207–9 and Annex and Commission on Human Rights Resolution 200/43, paras 5 and Annex, and General Assembly Resolution 55/89 (2000), para. 3.

Commission on Human Rights Resolution 1985/33, para. 6.

Notably former Yugoslavia (1992, Commission Resolution 1992/S-1/1), Rwanda (1994 Commission Resolution S-3/1 (1994)) and East Timor (1999, Commission Resolution 1999/S-4/1).

For example, by Resolution 2001/62, the Commission requested the special rapporteur on torture to study the issue of trade and production of ‘torture equipment’, although the matter had not been addressed in his report (paras 8–9).

Commission on Human Rights Resolution E/CN.4/RES/S-5/1 (2000).

Commission Resolution 2001/62, para. 29; the same Resolution did request him to undertake the visit ‘as soon as possible and without further delay’ (para. 27).

Emphasis added.

While council mandates are, of course, created by the council, a few may be designated a special representative of the secretary-general, in which case the latter appoints the individual. Under such circumstances, it is unclear whether the mandate-holder might not find him- or herself accountable both to the council and the secretary-general.

UN Doc. E/CN.4/2006/4 (2005), para. 78.

UN Doc. A/HRC/10/24 (2008), paras 32–3; it had begun to operate ad interim in 2007.

Ibid., Annex 3, 26.

Ibid.

Ibid.

Ibid., 27.

Ibid.

Ibid., 28.

UN Doc. 8/PRST/2 (2008).

Isabel Kershner, ‘U.N. Rights Investigator Expelled by Israel’, New York Times, December 16, 2008.

Letter, 31 December 2009, http://portal.ohchr.org/portal/pls/portal/docs/1/3706313.PDF (accessed 14 December 2010); see also letter of 2 February 2010, http://portal.ohchr.org/portal/pls/portal/docs/1/3702482.PDF (accessed 14 December 2010).

Letter 11 February 2010 from council president Alex van Meeuwen, http://portal.ohchr.org/portal/pls/portal/docs/1/3704321.PDF (accessed 14 December 2010); it is understood that the President's response was drafted on the basis of legal advice from the UN Office of Legal Affairs.

See most recently Human Rights Council Open-Ended Intergovernmental Working Group on the Review of the Work and Functioning of the Human Rights Council, ‘Compilation of State Proposals’, UN Doc. A/HRC/WG.8/1/CRP.1 (2010), chapter IIA accessed from Human Rights Council Extranet, 2 November 2010: among several proposals for a legal committee to deal with complaints of non-compliance with the code, note that of Pakistan on behalf of the OIC asserting a ‘need to establish a HRC “legal committee on compliance with the code of Conduct” on the basis of equitable geographic distribution’ (emphasis added).

See ‘Open Letter to Member States of the Human Rights Council’, 11 June 2009, signed by Amnesty International and 34 other leading human rights organisations, http://www.article19.org/pdfs/letters/hrc-open-letter-on-mandate-holders.pdf (accessed 14 December 2010).

Philip Alston, ‘The Need for a Committee of Jurists to Evaluate Complaints of Non-compliance with the Human Rights Council's Code of Conduct for Special Procedures’ (2010), on file with the author.

See emphasised words note 75 supra.

The Report of the 17th Annual Meeting of Special Procedures is silent on the topic.